How to stand out in the right way: tackling the risks of using a lurid slogan in a Google ad
In a recent decision (25 April 2023, 4 Ob 49/23v), the Austrian Supreme Court found that customers who visit the website of an advertiser after clicking on a misleading Google ad fall victim to an unfair commercial practice even if their perception gets corrected through further information on the respective website. Thus, for the first time, the court confirmed that the settled case law, where luring customers into a physical shop already counts as them making "transactional decisions", also applies to the virtual world.
The case at hand concerned a Google ad that contained the eye-catching slogan "mobile phones for € 0". The (less attractive) contractual terms were displayed through an -icon, which was positioned not next to the slogan but to the company logo, and only opened up when being clicked on. In the eyes of the court, this overall presentation was misleading because it failed to clearly indicate the onerous conditions and price components of the offer promoted by the ad.
While the outcome of this decision seems hardly surprising, it shows the importance of considering the overall impression created by one's online (e.g. Google) ads even when space is limited (and expensive). In particular, lessons can be drawn as to how a clarifying note, something which is often necessary to prevent eye-catching slogans from being misleading, should or should not be presented online. According to settled case law, such notices must be "clearly perceptible" for an average consumer, a threshold which is not always easy to determine, especially when being confronted with new communication tools. Looking at this particular case, it appears that advertisers may be well advised to act with care when positioning and using more unconventional means such as icons or pop-out notes to present material information.